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Home Winning EEOC claims Award Reduction

Medical Evidence lost in the mail reduces EEOC award

civilrightsfed by civilrightsfed
February 1, 2020
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This eeoc claim is about non-medical evidence, and how it decreases the value of your EEOC claim. Sally Feser says she submitted medical evidence, but it must have been lost in the mail.

lost evidence

You can learn from this EEOC appeal,  how non-medical evidence affects and lowers any compensatory damages that are eventually awarded. This won’t mean much to most of you, because EEOC denies most claims or decides against the complainant. To the lucky few who’s claim is accepted, please get help from a knowledgeable federal employee attorney, submit everything on time, and continue to read civilrights-federal.com.

Sally Feser v. Department of Agriculture

01974440

June 29, 2000

Sally Feser,                          )

Complainant,                        )

)

v.                                  )  Appeal No. 01974440

)  Agency No. 940412

Daniel R. Glickman,                   )

Secretary,                            )

Department of Agriculture,            )

Agency.                             )

______________________________________)

DECISION

INTRODUCTION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final agency decision concerning her equal

employment opportunity (EEO) complaint, which alleged discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. §2000e et seq.  The appeal is accepted by the Commission in

accordance with the provisions of 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. § 1614.405).<1>

ISSUE PRESENTED

The issue presented is whether the agency properly determined

complainant’s entitlement to compensatory damages.

BACKGROUND

This is the second appeal in this case.  In October 1993, complainant

and the agency entered into a settlement agreement (SA-1) whereby

complainant received a large lump-sum payment to settle an EEO complaint.

In January 1994, the agency issued complainant an IRS Form 1099 indicating

tax liability for the lump-sum payment.  Subsequently, complainant

became aware that an agency official had suggested to other employees

that complainant might commit violent acts against agency personnel.

Complainant filed a second EEO complaint alleging that these two actions

were taken in reprisal for her earlier EEO complaint.

On April 12, 1994, complainant and the agency entered into a second

settlement agreement (SA-2) whereby the agency agreed, inter alia,

to pay complainant’s proven compensatory damages, up to $25,000, in

settlement of her second complaint.  Complainant submitted evidence in

support of her claim.  The agency awarded $1779.64 in pecuniary damages,

but awarded no non-pecuniary damages, noting that complainant had not

submitted medical evidence in support of her claim.

On appeal to the Commission, complainant argued that she had

submitted medical releases to the agency to be used in securing medical

evidence.  No documentation was submitted in support of this argument.

The Commission nonetheless found, based on other evidence of record,

that complainant was entitled to an award of non-pecuniary damages in an

amount to be determined on remand.  The Order of the Commission directed

the agency, in relevant part, to determine whether complainant had

provided medical releases, and if she had not, to proceed to determine

the amount of non-pecuniary damages to which she was entitled based on

evidence already of record.  Sally Feser v. Department of Agriculture,

EEOC Appeal No. 01950533 (July 12, 1996).

The agency thereafter issued a final agency decision in which it noted

that it had been unable to locate any medical releases submitted by

complainant, or any evidence that such releases had been provided.

The agency therefore proceeded to determine complainant’s entitlement

to non-pecuniary damages, awarding complainant $1950.  It is from this

decision that complainant now appeals.

ANALYSIS AND FINDINGS

As a preliminary matter, the Commission notes that on the instant appeal,

complainant has requested that the Commission remand the case with

instructions to the agency to obtain medical evidence from complainant

to be used in determining the amount of non-pecuniary damages to which

she is entitled.  The Commission finds no basis to remand this matter.

Complainant, who has been represented by counsel throughout these

proceedings, has by now had ample opportunity to supplement the record

with medical evidence — at the time of her first appeal, during the

remand, and on the instant appeal; or, at the very least, to submit

evidence establishing that she had, in fact, provided the agency with

the medical releases necessary for the agency to have obtained medical

evidence on her behalf.  Accordingly, the Commission will proceed to

determine the extent of complainant’s entitlement to non-pecuniary

damages based on the present record.

A.  Legal Standards for an Award of Compensatory Damages

Pursuant to section 102(a) of the Civil Rights Act of 1991, a

complainant who establishes his or her claim of unlawful discrimination

may receive, in addition to equitable remedies, compensatory damages

for past and future pecuniary losses (i.e., out of pocket expenses)

and non-pecuniary losses (e.g., pain and suffering, mental anguish).

42 U.S. C. §1981a(b)(3).  For an employer with more than 500 employees,

such as the agency, the limit of liability for future pecuniary and

non-pecuniary damages is $300,000.  Id.

The particulars of what relief may be awarded, and what proof is necessary

to obtain that relief, are set forth in detail in EEOC Notice No. N

915.002, Compensatory and Punitive Damages Available Under Section 102

of the Civil Rights Act of 1991 (July 14, 1992).  Briefly stated, the

complainant must submit evidence to show that the agency’s discriminatory

conduct directly or proximately caused the losses for which damages

are sought.  Id. at 11-12, 14; Rivera v. Dept. of the Navy, EEOC Appeal

No. 01934157 (July 22, 1994).  The amount awarded should reflect the

extent to which the agency’s discriminatory action directly or proximately

caused harm to the complainant and the extent to which other factors may

have played a part.  EEOC Notice No. N 915.002 at 11-12.  The amount of

non-pecuniary damages should also reflect the nature and severity of

the harm to the complainant, and the duration or expected duration of

the harm.  Id. at 14.

B.  Complainant’s Evidence

The evidence bearing on non-pecuniary damages submitted by complainant

consists of statements by complainant and her husband.  In her statement,

complainant explained that because the agency issued her an IRS Form

1099 for an award of damages that was not, in fact, taxable, she was

unable to file her income tax return on time.  This circumstance caused

her to have to contact her ex-husband, whose tax return would also be

affected, and to have to disclose to him the existence of the first

settlement agreement.  Complainant was also required to disclose the

first settlement agreement to an agent of the Internal Revenue Service in

order to obtain advice as to whether the proceeds of the settlement were

taxable.  Complainant stated that these events caused her much distress

and inconvenience.  She stated that the stress of the situation caused

the return of symptoms she had experienced previously on account of the

agency’s actions, namely depression, headaches, back and neck spasms,

anxiety, and insomnia.  Complainant stated that she resumed taking

previously prescribed medication for stress.  Complainant further stated

that her irritability and frustration with these matters interfered with

her communication and interaction with her husband and step-children.

With regard to an agency official having suggested that complainant might

engage in violent activity, complainant stated that learning of this

comment caused a recurrence of the “mental abuse, stress, and anguish”

she had suffered as a result of a criminal charge and investigation

which formed the factual basis of her first EEO complaint.  Complainant

stated that the agency official’s comment caused her to “relive the

horror that [she] endured as a result of being charged and treated as

a criminal.”  Complainant stated that she still had business to conduct

on the agency premises, but that she feared that she might be “set up.”

Complainant identified the on-set of her symptoms as late January 1994,

but did not make any statement regarding the duration of these symptoms.

Complainant’s statements regarding the effects of the agency’s actions

were corroborated by her husband.

C.  Calculation of Damages

There are no “hard and fast” rules governing the amount to be awarded.

However, non-pecuniary damages must be limited to the sums necessary

to compensate the injured party for actual harm, even where the

harm is intangible, see Carter v. Duncan-Hogans, Ltd., 727 F.2d 1225

(D.C. Cir. 1994), and should take into account the severity of the harm

and the length of time that the injured party has suffered from the harm.

Carpenter v. Dept. of Agriculture, EEOC Appeal No. 01945652 (July 17,

1995); EEOC Notice No. N 915.002 at 14.  In this regard, the Commission

notes that complainant has not provided any information regarding the

duration of the harm.  The Commission disagrees with the agency’s position

that any harm of necessity would have ceased as soon as the subject of

the complaint was addressed, that is, as soon as the tax information was

corrected and the agency official in question apologized.  Nonetheless,

in the absence of any evidence to the contrary, the Commission finds

that the harm experienced by complainant could reasonably be expected

to have abated shortly thereafter.  The Commission further notes that

for a proper award of non-pecuniary damages, the amount of the award

should not be “monstrously excessive” standing alone, should not be

the product of passion or prejudice, and should be consistent with the

amount awarded in similar cases.  See Cygnar v. City of Chicago, 865

F.2d 827, 848 (7th Cir. 1989); US EEOC v. AIC Security Investigations,

Ltd., 823 F.Supp. 573, 574 (N.D. Ill. 1993).

Several Commission decisions have awarded compensatory damages in cases

similar to complainant’s. Schral v. Dept. of Veterans Affairs, EEOC

Appeal No. 01961614 (December 15, 1999) ($1500 non-pecuniary damages

where complainant presented non-medical evidence that sexual harassment

caused her to become shocked and upset and to have nightmares); Mozell

v. Dept. of the Interior, EEOC Appeal No. 01981521 (August 12, 1999)

($1000 non-pecuniary damages where complainant’s supervisor took steps to

undermine her authority over her subordinates based on sex and reprisal,

and complainant presented non-medical testimony that  she became much

more emotional than normal, including becoming irritable and paranoid;

Weatherspoon v. Dept. of Agriculture, EEOC Appeal No. 01966395 (March

4, 1999) ($1000 non-pecuniary damages where complainant was denied a

promotion based on race, and presented non-medical evidence that she

felt humiliated and degraded, and became distrustful and defensive);

Benson v. Dept. of Agriculture, EEOC Appeal No. 01952854 (June 27, 1996)

($5,000 non-pecuniary damages where complainant was denied promotional

opportunities on the bases of race and reprisal, and consequently

experienced stress, skin rashes, withdrawal, and isolation); Lawrence

v. U.S. Postal Service, EEOC Appeal No. 01952288 (April 18, 1996)

($3,000 non-pecuniary damages for sexual harassment where complainant

presented primarily non-medical evidence that she was irritable,

experienced anxiety attacks, and was shunned by her co-workers).

Taking into account the evidence of non-pecuniary damages submitted

by complainant, the Commission finds that complainant is entitled

to non-pecuniary damages in the amount of $2500.  This amount takes

into account the severity and the likely duration of the harm done

to complainant by the agency’s actions.  The Commission further notes

that this amount meets the goals of not being motivated by passion or

prejudice, not being “monstrously excessive” standing alone, and being

consistent with the amounts awarded in similar cases.  See Cygnar,

865 F.2d at 848; AIC Security Investigations, 823 F.Supp. 573 at 574.

Accordingly, the Commission will order the agency to tender non-pecuniary

damages in this amount.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

MODIFY the final agency decision to reflect that complainant is entitled

to $2500 in non-pecuniary damages.

ORDER

The agency is ORDERED to take the following action:

Within sixty (60) days of the date on which this decision becomes final,

the agency shall tender to complainant non-pecuniary compensatory damages

in the amount of $2500.  The agency shall submit a report of compliance,

including proof that such damages have been paid, to the compliance

officer as referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K1199)

Compliance with the Commission’s corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C.  20036.  The agency’s report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant.  If the agency does not comply with the Commission’s order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. § 1614.503(a).  The complainant also has the right to file a

civil action to enforce compliance with the Commission’s order prior

to or following an administrative petition for enforcement.  See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. §§ 1614.407, 1614.408), and 29 C.F.R. §

1614.503(g).  Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled “Right to File a Civil Action.”  29 C.F.R. §§ 1614.407

and 1614.408.  A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. §

2000e-16(c)(Supp. V 1993).  If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated.  See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. § 1614.409).

ATTORNEY’S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney’s fees incurred in the processing of the

complaint.  29 C.F.R. § 1614.501(e).  The award of attorney’s fees shall

be paid by the agency.  The attorney shall submit a verified statement of

fees to the agency — not to the Equal Employment Opportunity Commission,

Office of Federal Operations — within thirty (30) calendar days of this

decision becoming final.  The agency shall then process the claim for

attorney’s fees in accordance with 29 C.F.R. § 1614.501.

STATEMENT OF RIGHTS – ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY’S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. § 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036.  In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. § 1614.604).  The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request.  Any supporting documentation

must be submitted with your request for reconsideration.  The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances.  See 29 C.F.R. § 1614.604(c).

COMPLAINANTS’ RIGHT TO FILE A CIVIL ACTION (R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint.  However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court  WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision.  In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission.  If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN

THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT

HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.

Failure to do so may result in the dismissal of your case in court.

“Agency” or “department” means the national organization, and not the

local office, facility or department in which you work.  Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security.  See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court.  Filing a request for an attorney does not extend your time

in which to file a civil action.  Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

(“Right to File a Civil Action”).

FOR THE COMMISSION:

June 29, 2000

DATE             Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing.  I certify that

the decision was mailed to complainant, complainant’s representative

(if applicable), and the agency on:

_________________    __________________________________

Date            Equal Opportunity Specialist

1On November 9, 1999, revised regulations governing the EEOC’s federal

sector complaint process went into effect.  These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process.  Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal.  The regulations, as amended, may also be found at the

Commission’s website at www.eeoc.gov.

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